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Goldmark: In face of NSA, we need a public defender of the Bill of Rights

A public defender of the Bill of Rights

A public defender of the Bill of Rights in the FISA Court derives from principles as old as the Constitution itself. The Founding Fathers would have loved the idea. Credit: Jennifer Kohnke

On Friday, President Barack Obama finally addressed growing skepticism about the government's vast surveillance programs.

We've all been reading about how our government has been tracking our phone calls and email. Some say this is an unacceptable violation of our privacy. Others argue that in an age of terrorism it's unavoidable.

Neither point of view has it right.

Let's start with two reality checks. The first is that there are terrorist groups out there right now plotting to do some pretty awful things. The second is that we live in a digital age. That's not going to change; on the contrary, we are all going to be leaving more digital tracks as we travel, talk, buy things and manage our lives.

So electronic surveillance is going to be necessary -- and some forms of surveillance are going to be pretty extensive and intrusive.

If we are going to live with both realities -- the threat of organized, international terrorism and a digital society -- then we need an institution that can establish and enforce an intelligent balance between the claims of national security and those of individual privacy and the Bill of Rights. We don't have such an institution today.

In 1978, this country created a court to interpret the Foreign Intelligence Surveillance Act (known as the FISA court), a body that rules in secret on government requests to conduct electronic surveillance of alleged foreign intelligence agents and others. In its 35-year history, the FISA court has granted thousands of applications for such surveillance warrants by U.S. intelligence agencies, and denied . . . fewer than half a dozen.

Presentations to the FISA court are ex parte, which is lawyer talk meaning only the government intelligence agency gets to present its case.

But as Obama indicated on Friday, we need a system that is more adversarial. We need a court that will hear and weigh opposing arguments, like the normal courts you and I are familiar with, where the prosecution and the defense argue their positions, and sworn testimony is tested in the crucible of cross-examination.

How could that be done in a secret court dealing with classified and extremely sensitive intelligence information? One way is to appoint a permanent public defender of the Bill of Rights, whose job is to look at what the government intelligence agency is proposing. If he or she thought it was unnecessary or was reaching too far, (s)he could oppose it or propose to modify it.

I have no confidence that huge bureaucracies dealing with classified information and operating out of public view have been properly weighing the public interest and the Bill of Rights against their own bureaucratic agendas. Instituting adversarial deliberations will help. Judges rule more wisely when they can hear both sides of the argument.

This isn't a radical new idea, but an old-fashioned one consistent with the most traditional American concepts of limits on official power.

One of the great contributions of the Founding Fathers to the history of freedom and government responsive to the people was the idea of checks and balances. Supreme Court Justice Louis Brandeis warned that "the greatest dangers to liberty lurk in the insidious encroachment by men of zeal, well-meaning but without understanding." Most centers of power pursue their own interests, and one way to ensure the survival of liberty is to provide a counterweight to the self-aggrandizing exercise of power by authorizing an independent body to check and limit the exercise of those powerful interests.

In that sense, a public defender of the Bill of Rights in the FISA Court derives from principles as old as the Constitution itself. The Founding Fathers would have loved the idea.

Peter Goldmark, a former budget director of New York State and former publisher of the International Herald Tribune, headed the climate program at the Environmental Defense Fund.